Mohamed Nawshad Mohamed Nazir v. Torture Claims Appeal Board
Read the full judgment text of HCAL 409/2020 on BabelCite. This High Court CFI judgment was delivered on 20 November 2023.
1. The Applicant is a 45-year-old national of Sri Lanka who arrived in Hong Kong one day in mid-September 2004 as a visitor under a false passport and was subsequently arrested by police more than one year later on 12 October 2005 for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a torture claim to the Immigration Department on the basis that if he returned to Sri Lanka he would be harmed or killed by members of various political parties as he
Cites 5 cases
|
HCAL 409/2020 [2023] HKCFI 3011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 409 OF 2020
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 45-year-old national of Sri Lanka who arrived in Hong Kong one day in mid-September 2004 as a visitor under a false passport and was subsequently arrested by police more than one year later on 12 October 2005 for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a torture claim to the Immigration Department on the basis that if he returned to Sri Lanka he would be harmed or killed by members of various political parties as he supported their rival United National Party (“UNP”) and/or by his former girlfriend’s family who blamed him for her suicide death and/or by his wife’s family who blamed him for her conversion of her religion from Catholic to Islam, and after his torture claim was rejected, he then sought non-refoulement protection on the same bases. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born in Gampola, Kandy District, Sri Lanka and raised as a Muslim in Wahugapittiya, Pussallawa, Kandy District. After leaving school he followed his father’s tradition and supported the political party United National Party (“UNP”) regularly attended their local meetings and activities without holding any official post in the party, during which he together with his fellow UNP supporters often suffered attacks by members/supporters of rival political parties including Sri Lanka Freedom Party (“SLEP”) and United People’s Freedom Alliance (“UPFA”) and other Buddhist extremists groups, especially during election times when the attacks would occur 5 to 6 times a month that he had suffered injuries that required medical treatments at the hospital, and which caused him to live in constant fears of further attacks by those rival political parties. 3.In March 2004 the Applicant met and formed a relationship with a married woman Ranjithamalar who told him that she was unhappy with her marriage and had decided to leave her husband, but later in September 2004 when her family discovered about their relationship, her husband and brothers came to the Applicant’s family to demand his parents to stop the Applicant from seeing Ranjithamalar or else they would kill the Applicant. 4.As the Applicant became fearful for his safety, he and Ranjithamalar decided to leave the country together, and so he first fled to Colombo to take shelter in a friend’s place, and in mid-September 2004 he departed Sri Lanka by himself under a false passport for Hong Kong as a visitor, during which he was informed by his family in Sri Lanka that Ranjithamalar had subsequently committed suicide, and for which her husband and family had blamed the Applicant and had sworn to kill him, and so the Applicant was afraid to return to Sri Lanka and therefore overstayed in Hong Kong, and after his subsequent arrest by the police in October 2005, he then raised his torture claim with the Immigration Department. 5.While being released on recognizance pending the determination of his torture claim, the Applicant in 2006 met and formed a relationship with a fellow Sri Lankan woman who was also a non-refoulement claimant, and who subsequently gave birth to their 2 children in Hong Kong, and on 5 August 2009 they registered their marriage in Hong Kong after she had converted her religion from Catholic to Islam, but for which her family in Sri Lanka had threatened to kill her and the Applicant should they return to Sri Lanka, a risk which the Applicant also included in his own claim, and after his torture claim was rejected, he then sought non-refoulement protection by completing a Supplementary Claim Form (“SCF”) on 17 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 26 September 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”). 7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found numerous material inconsistencies discrepancies contradictions and implausibility in his account of events alleged to have occurred prior to his departure of Sri Lanka and in Hong Kong that it doubted his claims of political involvement and persecutions by rival political parties in Sri Lanka or of threats from his former girlfriend’s family over her suicide or from his wife’s family over her religious conversion that it is not accepted that there is any substantial ground for believing that there is a reasonable degree of likelihood of a real risk or chance that the Applicant will be subjected to any serious harm upon his return to Sri Lanka, that even if any such account of events were true that the absence or low intensity and frequency of ill-treatment in the past from any of them is indicative of a small future risk of harm upon his return to Sri Lanka, that in the absence of any official involvement in any of his claimed risks that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Colombo where it would be difficult if not impossible for anyone to locate him. 8.On 9 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 31 May 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 22 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it had significant concerns as to the credibility of almost all aspects of his accounts of the events which he claimed led to his departure of Sri Lanka and the reasons for which he feared returning that it did not accept that he had been truthful about any of the central core or matters of his claim, that his credibility was further undermined by his use of a false passport to enter Hong Kong and his subsequent failure to raise his claim upon his arrival until more than one year later and only after his arrest by the police that it is not accepted that the Applicant is at risk of any harm from members or supporters of any political parties or the family of his former girlfriend or the family of his wife or that he would be in danger of harm in connection with any of those matters upon his return to Sri Lanka that it concluded that his claim for non-refoulement protection failed on all applicable grounds. 10.On 13 March 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date, nor did he provide any at the hearing of his application. 11.By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. 12.As the last day of the 3 month-period for him to file his Form 86 fell on 22 November 2019, the Applicant was therefore some 3 ½ months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393. 13.In the Applicant’s case, a delay of 3 ½ months must be considered as very substantial and inordinate, for which he gave the following explanations in his supporting affirmation:
14.Apart from the fact that the Applicant had not produced any documentary evidence to corroborate any of his above assertions, such as his alleged application for Legal Aid which even if true cannot be accepted as a valid reason for such serious delay, and as the record shows that the decision was sent on the same day of 22 August 2019 to his lawyer from DLS without being returned through undelivered post and as acknowledged in his affirmation, the fact is that ignorance of the procedural rules can never be accepted as any reason or excuse for their non-compliance. In the circumstances I am not satisfied that the Applicant has provided any good or valid reason for his serious delay. 15.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge of the Board’s decision. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board, in which he was at all times legally represented, or in the decision of the Board being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge either. 16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 17.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 100 – 151 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 18.The fact is that it has also been established by the Director in his decision that the alleged risks of harm in the Applicant’s claim from the families of his former girlfriend or his wife even if real are localized ones and that it is not unreasonable or unsafe for him and together with his wife and children to relocate to other part of Sri Lanka, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 19.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim. 20.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application. Dated the 20th day of November 2023
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence Form CALL-1
|
Cases cited in this judgment